1999 PLP 2759 (MLD)

Ibad-ur-Rehman Lodhi for Appellant. Sardar Muhammad Aslam for Respondents. Date of hearing: 28th October, 1998. The facts forming the background of the instant Constitution petition are that the petitioner instituted an application under section 25 of the Guardians and Wards Act for the custody of his minor son, Asher Irfan in the Court of learned Guardian Judge, Rawalpindi. After the recording of evidence of the Parties and due opportunity of hearing afforded to them, the learned Guardian Judge. Rawalpindi dismissed the petitioner's application vide his order, dated 27-2-1997 Feeling himself aggrieved of the aforesaid order of the dismissal of application aforementioned, the petitioner preferred an appeal before the learned District Judge. Rawalpindi which on coming before the learned additional District Judge, Rawalpindi for final disposal was dismissed by him vide his order, dated 10-11-1997. The petitioner thus feels aggrieved of the orders of the two Courts below refusing custody of his minor son to him and has approached this Court in its extraordinary Constitutional jurisdiction.

2. Mr. Ibad-ur-Rehman Lodhi, learned counsel for the petitioner appearing in support of the instant Constitution petition has raised the following contentions:-- (i) That the findings of the Courts below are vitiated by non-reading and misreading of the evidence on the record. (ii) that there is a presumption of law that the welfare of a minor lies in his being lodged in the custody of the person who is entitled to the same under the personal law applicable to the parties. Learned counsel submitted that under the personal law applicable to the parties, the minor son being of the age of more than 7 years was liable to be handed over to the petitioner and there was a presumption of law that is being handed over in the custody of the petitioner/father was also conducive to his welfare; (iii) that the respondent-mother was not a fit person to contribute to the welfare of the minor keeping in view the dictates of the education, moral, spiritual and material well being of the minor

3. Sardar Muhammad Aslam, Advocate appearing on behalf of the respondent-mother controverted the aforesaid submissions of the learned counsel for the petitioner and prayed for the dismissal of the instant Constitution petition.

4. I have considered and evaluated the respective submissions of the learned counsel for the parties and have gone through the orders passed by the Courts below as also the evidence brought by the parties on the record. Although it was pleaded by the learned counsel for the petitioner that the findings of the Courts below were vitiated on account of misreading and non -reading of the evidence on the record yet the learned counsel for the petitioner failed to point out the evidence which was not read by the Courts below or which was misread. The whole emphasis of the arguments of the learned counsel for the petitioner was on the fact that the minor was of findings of fact that the welfare of minor lay in his being lodged in the custody of the respondent mother. No legal justification has been shown by the learned counsel for the petitioner for interfering in the said concurrent findings of fact as to the minor's welfare. The findings recorded by the Courts below have not been shown to be suffering from any other legal infirmity or jurisdictional defect either. For, these are the parameters for interfering with the said findings. The aforesaid consideration apart, the interference in the findings recorded by the Courts below can also not be made by this Court in the exercise of its writ jurisdiction. For, the law is well settled that in the exercise of its writ jurisdiction, this Court cannot sit as a Court of appeal and substitute its own findings for those of the Tribunals below nor is it possible for this Court to re-appraise the evidence on the record. Towards the end of his arguments, learned counsel for the petitioner made a grievance that the orders passed by the two Courts below make no provision for the petitioner to meet the minor while he stays in the custody of the respondent-mother. When questioned as to where was the petitioner at present, learned counsel for the petitioner pointed out that he was abroad. Since the petitioner admittedly is not available in the country and is abroad, there appears no justification for making an order regulating the meetings of the minor with him. It is, however, made clear that on the petitioner's return to the country, about which I have not been taken into confidence as to when it was to come about, it would be competent for the petitioner to move an application before this Court for the purpose which when made shall be disposed of in accordance with law. The instant Constitution petition is dismissed as being wholly without merit and incompetent at law. Leaving the parties to bear their own costs. Q.M.H./M.A.K./I-80/L Petition dismissed.